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News Tip: Supreme Court Decisions Display Dynamics of Court's New Membership, Duke Law Professors Say

The most influential justice is Anthony Kennedy, not John Roberts, one professor says

Recent decisions by the U.S. Supreme Court, which ended its term today, show that even though John Roberts is chief justice, the most influential justice is Anthony Kennedy, a Duke University law professor says.

"At least until the next vacancy, this is now the 'Kennedy Court,'" said Neil Siegel, an assistant professor of law and political science. "Justice Kennedy himself made this clear with his separate opinions in Hudson v. Michigan and Rapanos v. United States, and now with Hamdan.

"Regarding subjects as diverse as presidential power in the 'war on terror,' the future of the exclusionary rule in criminal cases and the scope of Congress' constitutional power to protect the environment, Justice Kennedy's view is, or will be, the law of the land," Siegel said.

Other law professors noted that recent decisions indicate less affinity for the International Court of Justice and some potential for agreement.

Professor Curtis Bradley said the 5-4 decision Wednesday in Sanchez-Llamas v. Oregon, concerning rights under an international treaty (the Vienna Convention on Consular Relations), shows the court does not feel bound to follow the reasoning of the International Court of Justice, particularly how treaties affect U.S. law.

Bradley said former justice Sandra Day O'Connor would have tried harder than justices Samuel Alito or Roberts to accommodate the views of the international court.

Some degree of harmony among the justices was evident in the case Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, said Professor James Cox. In a unanimous decision, the court ruled the suit had to be moved to federal court pursuant to the Securities Litigation Uniform Standards Act of 1998, which sets out uniform rules for all shareholder class actions.

But since the statute does not give standing to that class of plaintiffs, the suit would certainly be dismissed, Cox said.

"The opinion is distinctive by its strict constructionist bent," Cox said. "This fact is all the more puzzling since this appears from the pen of Justice Stevens, one of the court's liberal members.

"Our two new justices had at least one opportunity to find a united court," he said.